Disability Discrimination Archives

Flu epidemics occur each year throughout the United States. The Center for Disease Control and Prevention estimates that flu activity most commonly peaks in January or February; however, seasonal flu activity can begin as early as October and continue to occur as late as May. The CDC indicates that, on average, 5% to 20% of the United States population gets the flu, and more than 200,000 people are hospitalized from seasonal flu-related complications. Because the flu impacts employee attendance and productivity, employers are beginning to require their employees to become vaccinated.

The Sixth Circuit issued an unpublished decision on August 18, 2011 that has the potential to make a large impact on disability discrimination cases and discrimination cases in general with respect to the "honest belief" defense often asserted by employers. In Jones v. Nissan N. Am., Sixth Cir. No. 09-5786, the Sixth Circuit reversed the district court's decision, directing it to enter judgment in favor of the plaintiff-employee, and remanded the case for a determination as to damages.

The case of Johnny Lee, Sr. v. University Hospitals Health System, Inc. (N.D. Ohio March 27, 2009) Case NO. 1:07CV3555 exemplifies risks some people take when they file a discrimination lawsuit during their bankruptcy proceedings. An individual could potentially face monetary sanctions and a dismissal of his lawsuit if he fails to notify the bankruptcy court and the assigned trustee of his pending charge.

Dennis Breen v. Infiltrator Systems (6th Cir. March 24, 2011), Case No. 10-5013: With the new regulations to the Americans with Disabilities Act, disability discrimination claims are increasing. In a recent ADA case, the 6th Circuit reviewed a Plaintiff's claim that his employer regarded him as disabled. Breen was employed as a manager. In January 2005, his supervisor conducted a performance review and noted that Breen needed to show improvement in his relationships with customers, employees, his attitude and do a better job of rotating inventory. In May 2005, Breen notified his supervisor that he had Hepatitis C. Although his supervisor asked if Breen needed to take a leave of absence, Breen declined. Breen noticed that his co-workers talked about his health condition and one co-worker referred to Breen as a "f----." Over the next several months, Breen's managers talked with Breen about not following its First In First Out policy. He received a written reprimand for refusing to work in the company's customer services department. Management also heard that Breen made open derogatory comments about his co-workers and told one of them that he was a "cancer." After a discussion with his managers, Breen decided to take medical leave to begin treatment for his Hepatitis C. When Breen returned to work, he was discharged. Breen sued his employer in state court under its civil rights act. After the employer removed the case to federal court, it moved for summary judgment which was granted by the district court. On appeal, Breen argued that he demonstrated that his employer "regarded" him as disabled because his co-workers made negative comments that he was gay because of his Hepatitis C. The court of appeals rejected this argument because such comments did not suggest that Breen was regarded as substantially limited in any major life activity as required under the ADA. Further, Breen acknowledged that no one in management made any negative comments about his Hepatitis C. Finally, Breen could not demonstrate that his employer regarded him as disabled by contending that management's awareness of his condition gave rise to the level of awareness or belief that Breen was substantially limited in a major life activity. By: Merl H. Wayman

Jessica Whitfield v. State of Tennessee, (6th Cir., March 25, 2011). Jessica Whitfield sued her state government employer for both equitable relief and damages under Titles I and II of the ADA for disability discrimination. The district court dismissed her claim under Title I based on the Supreme Court's decision in Board of Trustees v. Garrett, 531 U.S. 356 (2001) that held that Title I did not abrogate a state's sovereign immunity from suits for monetary damages. The district court did not address Whitfield's Title II claim before dismissing the entire action.On appeal, the Sixth Circuit agreed with the district court's disposition of the Title I claim as to the recovery of monetary damages against the state. However, the court disagreed with the lower court's dismissal of the Title I claim regarding Whitfield's claim for job reinstatement because that was a form of equitable relief that she should have been allowed to pursue based on the doctrine enunciated in Ex Parte Young, 209 U.S. 123 (1908). The court, however, concluded that Whitfield abandoned her claim under Title II of the ADA because she did not address it in her brief on appeal. The court continued to review Whitfield's appeal on her Title I appeal.First, the court clarified confusion that existed within the circuit as to the proper test for establishing a prima facie case of employment discrimination under the ADA. The court rejected a three-part test used by the district court in granting summary judgment reasoning that it is inconsistent with the Monette formulation expounded in Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1186 (6th Cir. 1996). The court further confirmed that within the Sixth Circuit, Monette requires that a plaintiff must prove that she was discriminated against solely because of her disability.Finally, the court concluded that there was overwhelming evidence that Whitfield was fired because she did a poor job, and that her performance problems were completely unrelated to her disabilities. Although Whitfield alleged that she could have done a better job if the employer had provided her all the accommodations she requested, the court determined that there were other performance deficiencies that were completely unrelated to her disabilities, and that Whitfield failed to prove that the employer's decision to fire her for these problems was a pretext for discrimination.

Susan Lewis v. Humboldt Acquisition Corporation (6th Cir. March 17, 2011). Plaintiff appealed a jury verdict against her on her disability discrimination case. Following a jury trial, the jury concluded that plaintiff was "regarded as" disabled and she was a "qualified individual" under the Americans with Disabilities Act. The jury, however, concluded that plaintiff's disability was not the "sole" reason for her termination from employment, and granted its verdict in favor of her employer. On appeal, Ms. Lewis argued that the trial court erroneously instructed the jury that she must prove that her disability was the "sole factor" resulting in her discharge, instead of a "motivating factor" as the majority of appellate courts within the United States.The Sixth Circuit Court of Appeals rejected plaintiff's appeal because the circuit previously held in Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1178 (6th Cir. 1996) that, to recover on a claim for discrimination under the ADA, a plaintiff must show that he was discharged solely by reason of his handicap. Under the law of the case doctrine, the panel stated that its hands were tied and that it could not overrule Monette without intervention from the United States Supreme Court or an en banc ruling from the Sixth Circuit.In a concurring opinion, Judge Griffin observed that the panel was bound by its previous panel decision in Monette. However, Judge Griffin noted that Monette was improperly decided because the panel in that decision applied its interpretation of the Rehabilitation Act that a plaintiff must prove the disability was the "sole" reason for the employment action. The concurring opinion stated that the supermajority of other circuits have held that the plain language of the ADA did not support application of the Rehabilitation Act's "sole reason" standard, and if he were allowed, would hold that this standard was contrary to the plain language of the ADA.By: Merl H. Wayman

May 23, 2011 marked the first day the new Americans with Disability Act regulations were effective. The new rules will be a challenge for employers because of adoption of the expansive definition of "disabled." On the other hand, the law is a serious win for employees. The previously restrictive definition of what constitutes a "disability" is done away with and almost no prior case law on the subject can help with interpretation. As for employment attorneys, it is pretty exciting-regardless of which side of the fence you land on.

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